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CASE NO.: Appeal (civil)  989 of 2008

PETITIONER: Shri V.J. Thomas

RESPONDENT: Shri Pathrose Abraham & Ors

DATE OF JUDGMENT: 05/02/2008

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.         989            OF 2008 (Arising out of SLP (C) NO. 20338 of 2005)

S.B. SINHA, J

1.      Leave granted.

2.      A question of some importance as to whether a third party can be  impleaded in a suit filed under Order I Rule 8 of the Code of Civil Procedure  is involved in this appeal which arises out of the judgment and order dated   30th June, 2005 passed by a Learned Single Judge of the Kerala High Court  in CRP No. 272 of 2004 dismissing the  revision application filed by the  appellant herein challenging the order dated 17.10.2003 passed by  Additional sub Court, Kottayam.   3.      The basic fact of the matter is not in dispute.   4.      Appellant herein filed Original Suit  No. 364 of 1997 in the Court of  Additional Sub Court, Kottayam,  for declaration of his title and for  possession of the suit property.  A prayer therein was made for restraining   the defendants who were three in number (Respondent Nos. 3 to 5 herein)  from interfering with his right to enjoy  the property by entering upon it or  using it as a pathway as if it was a public pathway.  A purported publication  was also made  in a newspaper purported to be in terms of Order I Rule 10  of the Code of Civil Procedure. 5.      Respondent Nos. 3 to 5 herein did not appear in the suit as a result  whereof, an ex-parte decree was passed on 26.3.1998.  An application for  execution of the said decree was filed.  Respondent Nos. 1 and 2 herein in  the said execution case filed  five applications,  the details whereof are  as  under: I.A.No.965/2002- Under Order 9 Rule 13, for           setting aside the exparte decree.        I.A.No.966/2002-   For Condonation of Delay I.A.No.967/2002-  Application for Stay of all the  proceedings in the execution. I.A.No.968/2002- Application filed by the  respondent no.1 for permission  to contest the suit and to add  himself in the array of parties  as additional defendant No.1. I.A.No.969/2002-        Application filed by respondent  No.2 for permission to contest  the suit and for making her as  additional defendant No.5.

6.      The Executing Court allowed I.A No. 968 of 2002 and 969 of 2002  impleading  respondent Nos. 1and 2 as defendant No. 5 and 7 in the suit.  

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The Revision Application filed thereagainst has been dismissed by a Single  Judge of the High Court by reason of the impugned judgment.  7.      Mr. V.J. Francis, learned counsel appearing on behalf of the appellant,  submitted that a suit, wherein notice under Order I Rule 8 of Code of Civil  Procedure has been issued, could not have been reopened at the instance of  the respondent Nos.1 and 2 herein without allowing their application for  condonation of delay and for setting aside the ex parte decree.  It was urged  that no case has been made out for condonation of delay as the applications  for setting aside the ex parte decree was filed after more than four years  from the passing thereof.         Respondent Nos. 1 and 2, in any event, it was contended, could not  have represented the panchayat and, thus, the impugned order is  unsustainable.                 8.      Mr. M.T. George, learned counsel appearing on behalf of the  respondent, however, would support the impugned judgment.   9.      The suit land measuring 450 ft. x 4 ft. starts from Vattachalpady  junction of Manarcadu-Thengana PWD road and ends at  Kuttiyilpadyperumpanachi Panchayat road on the east.   Respondent Nos. 1 and 2 were not parties to the suit.  They, in their  applications, inter alia, contended that the appellant and the respondent Nos.  3 to 5 herein are neighbours and close associates.  The suit was a collusive  one. Leave of the Court  under Order 1 Rule 8  was obtained on a  misrepresentation. 10.     A specific contention was also raised that plaintiff-petitioner  deliberately and intentionally had not impleaded the users of the pathway in  the said suit.  It was stated that publication of the notice purported to be  under Order 1 Rule 8 CPC was made is the newspapers which did not have  wide circulation in the locality.   11.     The High Court has, inter alia,   relying upon the decision of the  Madras High Court in Swaminatha Mudaliar   vs. Kumaraswami Chettiar  and others  [(1923) 44 MLJ 282] accepted the said contentions of the  respondent, holding : "It may be unusual to bring fresh plaintiffs  on the record after a decree has been passed; but   there is authority for doing so under Order I Rule  10.

       Order 1 Rule 8 expressly permits any person  on whose behalf a representative suit is instituted  to apply to the Court to be brought on the record,  and the words of this rule are not limited, as they  are by Order 1 Rule 10 by the purpose being  expressed as that of adjudication on the questions  arising in the suit. "

12.     The plaint is not   before us.  The application purported to have been  filed by the applicant   under Order 1 Rule 8   is also not before us.  On what  basis, the respondent Nos. 3 to 5 were impleaded in the suit and in which  capacity, thus, is not known. 13.     A suit filed in terms of Order 1 Rule 8 should   ordinarily be premised  on the ground that the defendants represent the parties interested in the suit  Defendants in such a suit, _________, must be able to represent the public in  general, but  no personal decree can be passed against them.  To what extent  the original defendants were interested in the suit property at least in respect  of the portion thereof is not known.   14.     A litigant may execute a decree which was obtained for the benefit of  the people of the locality but if he intends to execute a decree which was  obtained for his own benefit, those who would be affected thereby should  ordinarily be made parties to the suit.  Similarly, if a village pathway is the  subject matter of the suit on the premise that it is the personal property of the  plaintiff, those who use the said pathway or at least have lands adjacent  thereto should ordinarily be impleaded as parties.  In the latter case, like the  present one, applying the legal principles, as noticed hereinbefore, we are of  the opinion that a decree which has been obtained by suppression of fact or  collusively would not be executable against those who were not parties to

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the suit.  15.     Reliance has been placed by Mr. Francis on Chairman,   Tamil Nadu  Housing Board, Madras v. T.N. Ganapathy [(1990) 1 SCC 608] wherein the  question which arose for consideration centered around the maintainability  of the suit at the instance of the plaintiffs who belonged to the category of  low income group against Housing Board for a permanent injunction from  demanding and calculating from the allottees any additional price, was  answered in the following terms : "Coming to the relevant circumstances in the  present case, it will be seen that all the allotments  in Ashok Nagar were made under the same scheme  and all the relevant facts are common.  The basis  of the impugned demand of the appellant is equally  applicable to all the allottees and the plea of the  plaintiff is available to all of them.  The trial court  was, therefore, perfectly right in permitting the  plaintiff to proceed under Order I, Rule 8 of the  Code of Civil Procedure.  Nobody in this situation  can complain of any inconvenience or injustice.   On the other hand, the appellant is being saved  from being involved in unnecessary repeated  litigation."   16.     As indicated hereinbefore, we have no idea as to what was the nature  of interest was claimed by the Original Defendant No. 1 to 3 (Respondent  Nos. 3 to 5) in the suit land.  In any event, whether the service of notice was  proper would also be the subject matter of an enquiry by the learned trial  court.  It has also to be seen as to whether the notice in terms of Order I Rule  10 of the Code was published in a newspaper having a wide circulation in  the locality. 17.     In Union of India & Ors. v. DinanathShantaram Karekar & Ors. [1998  (4) SCALE 659], this Court held : "So far as the service of show cause notice is  concerned, it also cannot be treated to have been  served. Service of this notice was sought to be  effected on the respondent by publication in a  newspaper without making any earlier effort to  serve him personally by tendering the show cause  notice either through the office peon or by  registered post. There is nothing on record to  indicate that the newspaper in which the show- cause notice was published was a popular  newspaper which was expected to be read by the  public in general or that it had wide circulation in  the area or locality where the respondent lived.  The show-cause notice cannot, therefore, in these  circumstances, be held to have been served on the  respondent. In any case, since the very initiation of  the disciplinary proceedings was bad for the reason  that the charge sheet was not served, all  subsequent steps and stages, including the issuance  of the show-cause notice would be bad."

       In Church of North India v. Lavajibhai Ratanjibhai & Ors. [(2005) 10  SCC 760], it was observed "71.    \005.. bars a suit to enforce a right on behalf of  a public trust. C.N.I. got itself registered as a  public trust in the year 1981. A suit evidently was  filed by the plaintiffs in the year 1980 because  C.N.I. was not then entitled to file a suit. It may be  true that the suit was filed under Order 1, Rule 8 of  the Code of Civil Procedure but therein the  question as to whether the Appellant herein, being  a registered trust became entitled to the properties  of Brethren Church could not have been gone into.

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What is prohibited is to enforce a right on behalf of  a public trust. When the plaintiffs intended to  enforce a right on behalf of the Appellant, the suit  was evidently not maintainable."

18.     If for the purpose of examination of the said question, amongst others,  the executing court has allowed the applications for impleadment of the  respondent Nos. 1 and 3 herein as defendant No. 4 and 5, so as to enable  them to press their applications for setting aside the ex-parte decree upon  condonation of delay;  we do not see any reason to interfere therewith in  exercise of   our discretionary jurisdiction under Article 136 of the  Constitution of India.  19.     For the reasons above mentioned, there is no merit in this application  which is accordingly dismissed with costs.    Counsel’s fee assessed at Rs.  10,000/- (Rupees ten thousand only).